The Oath Keepers seditious conspiracy trial continues on Tuesday with more testimony from FBI Special Agent Byron Cody about what he uncovered from devices belonging to the extremist group’s leader, Elmer Stewart Rhodes, and a slew of his co-defendants.
Some communications seized from his device were unfurled for jurors last week. Those messages offered grim insight into the group’s alleged plans to keep former President Donald Trump in office despite his defeat by now-President Joe Biden in the 2020 election.
There are still a huge number of text messages and correspondence to be reviewed. After Cody leaves the witness stand, prosecutors are expected to haul in at least two more FBI agents for testimony. Ernest Hancock, the Arizona-based host of the right-wing podcast Declare Your Independence, is also expected to testify on behalf of the federal government this week.
Hancock hosted Oath Keepers on his podcast including Rhodes and defendant Edward Vallejo on the morning of the Capitol assault. Vallejo has been split from the Rhodes trial group due to logistical reasons and will go to trial in November.
During the podcast appearance, Arizona Oath Keeper Todd Kandaris joined Vallejo. Vallejo and Kandaris each regaled Hancock with details of the network’s plans for that morning and discussed the “quick reaction force” the group had arranged. Vallejo said he took orders from Rhodes directly as well. In an appearance on Hancock’s podcast on Jan. 15, 2021, Rhodes promoted the idea of utilizing militias to aid the U.S. Army, but he was also caught on mic lashing out at Trump.
Rhodes sounded frustrated that Trump never invoked the Insurrection Act on Jan. 6. He was of the opinion that the 2020 election was stolen and when Trump failed to raise the Oath Keepers to his side during the joint session, he appeared to feel slighted.
“Trump is the, Trump is the giant vagina. That’s what I think. I think Trump is a blowhard. He just wanted to be president and he ain’t gonna do shit. Just between you and me. He’s not doing a damn thing…[about the stolen election],” Rhodes said on the podcast.
RELATED STORY: Prosecutors tell story of sedition through Oath Keepers ‘bloody’ texts, speeches
Good morning. The trial is getting underway but before jurors enter the courtroom, Judge Mehta is weighing a series of motions that were filed over the last few days.
Oath Keeper founder Rhodes would like to keep a message between himself and his associate, Kellye SoRelle out of evidence. The message featured Rhodes saying that Congress would not “fear” anyone eager to change the outcome of the election unless they brought rifles.
Rhodes says the conversation is privileged because SoRelle was the Oath Keepers attorney at the time the message was sent. But the Justice Department argues that SoRelle was not technically Rhodes’s lawyer at the time of the message and that this defense has been relied on after the fact by the defendant to cover his tracks.
Regardless of this, prosecutors say the message should be admitted because of what is known as a “crime-fraud” exception, i.e. if a crime is committed under the color of privilege, the privilege is lost.
Judge Mehta is also reviewing a request this morning from defendants that raises questions about the totality of the text messages prosecutors introduced last week when FBI Special Agent Byron Cody was on the stand.
Defense argues the messages were incomplete and don’t show the responses from other Oath Keepers that might put their communications in greater context. Assistant U.S. Attorney Kathryn Rakoczy, however, has said that other messages involving other defendants should be admitted later when those individuals are actually on trial.
Mehta is currently reviewing the evidence from the bench and determining what messages jurors will see. Some are more detailed messages concerning past activities and requests that were made for personal security detail for various individuals, he said Tuesday.
Some will be let in, others will be excluded for now for relevance.
Defendant Thomas Caldwell has also asked Judge Mehta in a court filing if he can introduce evidence at trial that he says would exonerate him.
Caldwell wants to admit testimony from North Carolina Oath Keeper Paul Stamey. Stamey has not been indicted but he was present at the hotel in northern Virginia on Jan. 6 where Oath Keepers stockpiled weapons for their “quick reaction force.”
Caldwell has asked that Stamey receive immunity because he says Stamey is fearful of testifying without it. If he had it, Caldwell contends, he could clear his name and that of dozens of other Oath Keepers in North Carolina.
“Respectfully, it is beyond the pale that the government is seriously considering prosecuting an elderly man with multiple health issues, who provided a lengthy statement to the FBI over a year ago, and who was part of a 40-plus group ofNC-OKS who have not been charged,” Caldwell’s attorney David Fischer wrote in the Oct. 10 filing.
Brandi Buchman
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